ORDER 1. This petition is directed against order Annexure P-1 dated 22.5.2006, passed by the Prescribed Authority-cum-Sub-Divisional Officer, Jabalpur in Election Petition No. 4/A-89/21/2004-05 between parties. By the .3 impugned order, the Election Tribunal directed recounting of the votes in respect of election of Sarpanch, Gram Panchayat Padwar, District Jabalpur. This order has been assailed by the petitioner on following grounds : (i) That, the order directing recounting of the votes is illegal and without jurisdiction. There is no foundation in the case in respect of necessity of recounting of votes. (ii) That, the pleadings and evidence in the matter are totally vague, insufficient and the tribunal erred in directing recounting. The tribunal has emphasized in the order, while allowing the prayer of the respondent Sunderlal for recounting, on the aspect that the Presiding Officer on booth No. 151, of which recounting has been directed, has not controverted the averments of the petition. But on this ground recounting cannot be directed as the petitioner, who is a returned candidate, opposed the prayer. (iii) That, no application was filed by the respondent Sunderlal for recounting immediately after counting was completed and in absence of which, the Election Tribunal ought not to have allowed recounting. (iv) Reliance is placed to the apex Court judgment in Chandrika Prasad Yadav v. State of Bihar [ (2004) 6 SCC 331 ] and Single Bench judgment of this Court in Ramrati v. SDO Sidhi [ 2005 (3) JLJ 48 = 2005 (3) MPLJ 101 ] and submitted that the impugned order be quashed. 2. Learned counsel appearing for respondent Sunderlal supported the order and submitted: (i) That, this petition is based on incorrect facts. The dispute is in respect of the votes polled in favour of respondent Sunderlal. In fact after the counting at polling booth No. 151, it was declared that election petitioner Sunderlal got 214 votes while petitioner Kuwarlal Gond got 92 votes, but subsequently on 27.1.2005 when the result was declared, it revealed that the result was changed and at polling booth No. 151, in place of Sunderlal, it was declared that Kuwarlal got 214 votes and respondent Sunderlal got 92. This manipulation was made by Kuwarlal with the help of Presiding Officer at booth No. 151. This manipulation was made by Kuwarlal with the help of Presiding Officer at booth No. 151. Overwhelming evidence has been produced in this regard to prove the contention of respondent Sunderlal, which convinced and satisfied the Election Tribunal and the recounting has been rightly directed. (ii) That, there was no occasion to respondent Sunderlal to file an application for recounting. For the first time on 27.1.2005, he became aware in respect of this manipulation. On the date of counting, petitioner Kuwarlal was sitting with the Returning Officer at polling booth No. 151 and some transaction of money took place but the result of that transaction came out only on 27.1.2005, when the result was declared. In these circumstances, there was no question of filing any application for recounting. The entire election has been affected by the manipulation. There was a vast difference of votes between respondent Sunderlal and petitioner Kuwarlal and in fact by manipulation, petitioner Kuwarlal managed to change the result in his favour. From the recounting, truth would be revealed. Stating aforesaid, it is submitted that the impugned order does not suffer from any jurisdictional error and needs no interference of this Court. 3. Before appreciating the rival contentions of the parties, it is necessary to look into the facts of the present case; (A) Petitioner, respondent Sunderlal and two others were rival contestants for the office of Sarpanch, Gram Panchayat, Padwar. The polling took place on 16.1.2005. Petitioner was allotted election symbol hand-pump, respondent Sunderlal was allotted election symbol of goggles, Pannalal was allotted glass tumbler and Purushottam was allotted tree with coconut. There were three polling booths, namely, booth No. 150-High School, booth No. 151 Girls School and booth No.152 Middle School, Bazar. Total voters were 1819, but 1341 voters cast their votes. At the time of the counting, agents were present. No agent forms were issued by the Presiding Officer but they were permitted to remain present verbally. Even after counting, counting table chart was not supplied to the agents. Verbally, it was disclosed that petitioner Kuwarlal got 335, Pannalal 107, Purushottam 253 while respondent Sunderlal got 560 votes. 86 ballot papers were rejected. As per aforesaid, election petitioner Sunderlal was leading by 225 votes. After the result of the votes polled by each of the candidates, Kuwarlal remained with the Presiding Officer for more than 2 hours. Verbally, it was disclosed that petitioner Kuwarlal got 335, Pannalal 107, Purushottam 253 while respondent Sunderlal got 560 votes. 86 ballot papers were rejected. As per aforesaid, election petitioner Sunderlal was leading by 225 votes. After the result of the votes polled by each of the candidates, Kuwarlal remained with the Presiding Officer for more than 2 hours. After the counting, agents were ousted from the counting centre. In the same night, petitioner Kunwarlal with the collusion of Presiding Officer manipulated the result and got changed the result. It is alleged that petitioner Kuwarlal bribed the Presiding Officer of polling booth No. 151 of some amount in between Rs. 15,000/- to 20,000/- which was given with the ulterior motive for the manipulation in the result. Thereafter, result of booth No. 151 was changed and in place of 214 votes polled out in favour of Sunderlal, these votes were declared in favour of petitioner Kuwarlal and 92 votes which were polled in favour of Kuwarlal were declared as votes of Sunderlal and Kuwarlal was declared as returned candidate. Mainly on the aforesaid ground, the election petition was filed. (B) The tribunal, after issuing notice and recording evidence of both parties, by the impugned order has recorded following findings : (a) That, the Presiding Officer of booth No. 151 Shri R.K. Anand has not controverted the allegations of the election petitioner in which serious allegations were made against him and in absence of specific denial, it will be treated as admission on behalf of R.K. Anand. (b) That, petitioner Kuwarlal had not filed reply within time out but filed reply after closure of the evidence of the election petitioner, without permission of the Court. But the tribunal has considered the reply filed by petitioner Kuwarlal while deciding the case. (c) That, the petitioner Kuwarlal insisted his case relying on the judgment of the apex Court in Ramrati v. Saraoj Devi and others [1997(2) Vidhi Bhasvar 195 = (1997) 6 SCC 66 ] and contested the matter that in absence of filing of an application at the time of the counting, no recounting may be directed by the tribunal. (c) That, the petitioner Kuwarlal insisted his case relying on the judgment of the apex Court in Ramrati v. Saraoj Devi and others [1997(2) Vidhi Bhasvar 195 = (1997) 6 SCC 66 ] and contested the matter that in absence of filing of an application at the time of the counting, no recounting may be directed by the tribunal. But the tribunal found that judgment of Ramrati has been overruled by the apex Court in Sohanlal v. Babu Gandhi and others [2002 (2) Vidhi Bhasvar 300 = (2003) 1 SCC 108 ] and the case may be decided in view of the law laid down by the apex Court in Sohanlal. (d) The tribunal, after considering and appreciating the evidence of all witnesses, recorded a finding that initially result of counting was in favour of respondent Sunderlal, in whose favour higher votes were polled out. Petitioner Kuwarlal after completion of the counting remained with the Presiding Officer and paid money to R.K. Anand. This factual position has not been specifically denied by R.K. Anand. The tribunal also found that Kuwalal managed to pay some money to the Presiding Officer which has affected the election adversely. (e) The tribunal has also recorded a finding that at booth No. 151, Sunderlal initially got 214 votes and Kuwarlal got 92 votes, but thereafter result was changed. On aforesaid findings, the tribunal found that it is necessary to direct recounting in respect of polling booth No. 151 only so that the position may become clear. 4. In this petition, the main contention on behalf of the petitioner is that neither there are pleadings nor there is evidence in the matter, without which the recounting has been directed, and the election tribunal has committed grave error of jurisdiction in directing recounting. 5. To appreciate the rival contentions of the parties, firstly election petition Annexure P-2 may be seen. In paras 4, 5, 6, 7 & 8, election petitioner Sunderlal has specifically pleaded aforesaid facts. In para 6, it has been stated by election petitioner Sunderlal that he was declared as returned candidate by a margin of 225 votes. In para 7 it has been stated that after counting, petitioner Kuwarlal remained with the polling officer for nearabout 2 hours and the election agents of Sunderlal were ousted from the polling booth. In para 8 fit has been specifically stated that an amount of Rs. In para 7 it has been stated that after counting, petitioner Kuwarlal remained with the polling officer for nearabout 2 hours and the election agents of Sunderlal were ousted from the polling booth. In para 8 fit has been specifically stated that an amount of Rs. 15,000 to 20,000/- was paid to the Presiding Officer of booth No. 151 for the purpose of manipulation of the votes. Contentions of election petitioner have been found proved by witnesses namely Goluram Tharia, Jagdish Singh Kshatri and Basodilal Rajak whose evidence has been considered at length by the election tribunal and recorded aforesaid findings. Petitioner Kuwarlal could not controvert the aforesaid evidence. 6. The apex Court in Chandrika Prasad Yadav (supra) considering the scope held thus : 24. "The order of the learned Munsif did not satisfy the statutory requirements. Rule 79 of Bihar Panchayat Election Rules, 1995 -- whether mandatory or directory 25. Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for recounting of votes. Rule 79 unlike rules framed by other States, does not say that such an application would not be maintainable after declaration of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time. The very fact that sub-rule (3) of rule 79 provides for amendment of the result relating to the votes polled by the respective candidates and as such amended result is required to be announced in the prescribed form under sub-rule (2) of Rule 79, the same itself is a pointer to the fact that even after announcement of result, for recounting an application would be maintainable. It may be true that only because such an application had not been filed before the returning officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting but there cannot be any doubt whatsoever that rule 79 serves a salutary purpose. Counting of ballot papers in terms of the rules takes place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. Counting of ballot papers in terms of the rules takes place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. As noticed hereinbefore, in a given case, an application for recounting either before announcement of the result or thereafter, would be maintainable. Once an application is filed by an agent or a counting agent or the candidate himself pointing out the irregularities committed by the officers appointed for the counting the ballot papers, immediate redressal of grievances would be possible. As indicated hereinbefore, while filing such an application the basis for making a request for recounting of votes is required to be disclosed. The returning officer is statutorily enjoined with a duty to entertain such an application, make an inquiry and pass an appropriate order in terms of sub-rule (2) of rule 79 either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient or cogent reasons. In the event such an application is allowed either in whole or in part, he is statutorily empowered to amend the results also. 26. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the Election Petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out." 7. This Court in Ramrati v. SDO, Sidhi (supra) has also considered the law and held thus: "8. Next contention of petitioner that the Sub-Divisional Officer erred in directing recounting of votes is concerned, it is settled law that recounting of votes is not a matter of course. This Court in Ramrati v. SDO, Sidhi (supra) has also considered the law and held thus: "8. Next contention of petitioner that the Sub-Divisional Officer erred in directing recounting of votes is concerned, it is settled law that recounting of votes is not a matter of course. Secrecy of ballot papers cannot be permitted to be tinkered lightly and has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount is necessary, only then recounting can be ordered. The apex Court in the case of Satyanarain Dudhani (supra) considering law in respect of recounting held: 'A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of Returning Officer. We are of the view, when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered." Similar view has been expressed by Division bench of this Court in Gendalal (supra) wherein it is held: 'Since the order for recount touches upon the secrecy of the ballot, it should not be made lightly as a matter of course. It has, therefore, been laid down by the Supreme Court that though no cast-iron rule of universal application can be laid down, the Court would be justified in ordering a recount, where all the material facts on which the allegations of illegality in counting are pleaded adequately in the election petition, and the Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. We have already indicated that whenever full particulars as required under rule 5 were not given in the petition it was not a defect as ipso facto entails dismissal of the petition.' The respondent No.2 has placed his reliance to Santosh Kumar Jain (supra) wherein (Justice D.M. Dharmadhikari as his lordship then was) it is held: Learned counsel for the petitioner then contended that change of venue of counting and absence of election petitioner at the place of counting are no good grounds to direct a recount of votes. The argument advanced has no force. Here the margin of votes between the two candidates was very narrow. For reasons beyond his control the election petitioner is found to have been prevented from attending the place of counting. He had prima facie made out a case that certain valid votes cast in his favour were not counted. In such circumstances a case for recount votes was clearly made out and after the recount was done the allegations made by the petitioner have been found to be true as on recount he got more votes than the present petitioner? The apex Court in Chandrika Prasad Yadav v. State of Bihar and others [ (2004) 6 SCC 331 ] considering the law for recounting of votes held that 'in following circumstances recounting may be ordered: (i) a prima facie case; (ii) pleading of material facts, stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) an objection to the said effect has been taken recourse to. While deciding the law the apex Court further held that narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient ground for ordering recounting and secrecy of ballot papers should also be maintained before recounting of votes. 10. While deciding the law the apex Court further held that narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient ground for ordering recounting and secrecy of ballot papers should also be maintained before recounting of votes. 10. From the perusal of the record it appears that in the counting of ballots of polling booth No. 39 there were 11 rejected votes and at the counting of ballots of polling booth No. 31 there were total 12 rejected votes and total rejected votes are 32 in number. The difference between petitioner and respondent No.2 is only one vote. The contention of petitioner is that her legal votes were rejected and were kept as rejected votes. In the aforesaid circumstances, considering the evidence on record, if the Sub-Divisional Officer found that recounting is necessary, then the authority has done justice in the case and has rightly directed recounting of votes, which requires no interference of this Court. In the aforesaid circumstances, the respondent No.1 has rightly directed for recounting of votes, in which order I do not find any error of jurisdiction to interfere, invoking the powers of superintendence under Article 227 of the Constitution of India. '" 8. In the light of the aforesaid judgment, facts of the present case may be seen. It is held that election petitioner after counting ought to have made an application for recount to if the authorities in respect of manipulation in the counting, but factual position in this case is different. It is not the case of the election petitioner that there was some improper acceptance or rejection of the ballot papers which ought to have been brought firstly into the notice of the authorities. As per allegations made in the election petition, initially result was in favour of Sunderlal but on the date when the result was declared viz. on 27.1.2005, the result was changed and votes polled at polling booth No. 151 in favour of Sunderlal were shown in favour of Kuwarlal and the it votes polled in favour Kuwarlal were shown in favour of Sunderlal and the net result of this was that Kunwarlal was declared as a returned candidate and Sunderlal, who as per averments in the petition was a returned candidate remained as defeated candidate. In these peculiar circumstances, it was not possible for the election petition to approach to the authorities. Though it is true that in the night itself, this fact came into the notice of the election petitioner Sunderlal that Kuwarlal remained at the counting centre for 2 hours and there was transaction of money between the Presiding Officer and Kuwarlal, but how he could assume that the entire result shall be changed in the aforesaid manner. Considering the contention of election petitioner which has been proved by adducing evidence before the election tribunal and looking to the fact that R.K. Anand who was noticed in the election petition has not controverted the facts of the election petition in which specific allegations were made against him by the petitioner, the election tribunal was not having any option except to direct recounting. Though it is stated by the petitioner that R.K. Anand who filed reply vide Annexure P-10 has specifically stated that he will be able to file reply after perusal of all the documents but from the it Perusal of the order sheet dated 7.2.2005 on which date reply was filed, it reflects that an application was filed and the case was adjourned to 8.2.2005. On 8.2.2005, R.K. Anand remained absent and matter was proceeded ex-parte. When R.K. Anand filed an application Annexure P-10, (though without Court-fee) but if he was inclined to file return, he ought to have approached to the election tribunal for pressing his application. Specific allegations were made, which were against R.K. Anand, he ought to have remained vigilant and should have pressed his application, so that he could have filed a detailed reply before the election tribunal. But in absence of this, he chose to remain absent in the proceedings. He has to suffer and to face the consequences. In these circumstances, when R.K. Anand has not specifically controverted the allegations made in the election petition against him, and the tribunal has considered this aspect, no fault can be pointed out. The aforesaid un-controverted facts may be taken into consideration in favour of the election petitioner. Though the petitioner Kuwarlal was not bound by the aforesaid non-denial of facts by R.K. Anand, but the petitioner ought to have adduced evidence before the election tribunal in this regard. The aforesaid un-controverted facts may be taken into consideration in favour of the election petitioner. Though the petitioner Kuwarlal was not bound by the aforesaid non-denial of facts by R.K. Anand, but the petitioner ought to have adduced evidence before the election tribunal in this regard. The election tribunal, after appreciating the evidence has recorded findings in favour of the election petitioner in which no interference is needed. 9. The order passed by the Election Tribunal is found in accordance with law. This petition has no merits and it is dismissed with costs.